Malicious Communications Act 1988

The Malicious Communications Act 1988 makes it illegal, in England and Wales, to "send or deliver letters or other articles for the purpose of causing distress or anxiety". It was updated in 2001 to include electronic communications.

Full Text of Section 1 of the Act

1. Offence of sending letters etc. with intent to cause distress or anxiety.E+W

(1)Any person who sends to another person—

(a)a letter, electronic communication or article of any description which conveys—

(i)a message which is indecent or grossly offensive;

(ii)a threat; or

(iii)information which is false and known or believed to be false by the sender; or

(b)any article or electronic communication which is, in whole or part, of an indecent or grossly offensive nature,

is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.

(2)A person is not guilty of an offence by virtue of subsection (1)(a)(ii) above if he shows—

(a)that the threat was used to reinforce a demand made by him on reasonable grounds; and

(b)that he believed [F4, and had reasonable grounds for believing,] that the use of the threat was a proper means of reinforcing the demand.

(2A)In this section “electronic communication” includes—

(a)any oral or other communication by means of a telecommunication system (within the meaning of the Telecommunications Act 1984 (c. 12)); and

(b)any communication (however sent) that is in electronic form.

(3)In this section references to sending include references to delivering or transmitting and to causing to be sent, delivered or transmitted and “sender” shall be construed accordingly.

(4)A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

Similarities to Section 127 of the Communications Act 2003

They are very similar - indeed, both the Malicious Communications Act 1988 and Section 127 of the Communications Act 2003 carry the same punishment - and both are based on the premise of a communication being "indecent, obscene, menacing, or grossly offensive".

The main differences are:

1. The Malicious Communications Act includes letters and articles, rather than just electronic communications.

2. The Malicious Communications Act includes the effect on the intended recipient(s), or those to whom the content is intended to reach.

4. The Malicious Communications Act includes an exception for people using reasonable threats to reinforce existing demands.

The two acts are essentially two sides of the same coin. An offence could fall within both acts, or one but not the other. For example:

Both Acts;

sending a letter containing racist abuse via the Royal Mail to a specific person.

Malicious Communications Act, but not Section 127;

dropping a letter containing racist abuse through the letterbox of a specific person.

Section 127, but not the Malicious Communications Act;

two racists communicating with each other over the phone and using racist abuse, but not using such terms directly at a specific person.

Controversies

Linney House

Linney House was arrested in Kent under suspicion of an offence under the Malicious Communications Act on Sunday 11th November 2012[1]. His offence was to post on facebook a photograph of himself burning a Remembrance poppy, with the caption How about that you squadey cunts[2]. The arrest prompted an intense backlash on social and traditional media, trending under the hashtag #poppycock.

The case is controversial for two reasons. The first is the interpretation of what constitutes "grossly offensive" and what constitutes freedom of speech/protest/expression, as is often the case with Section 127 prosecutions. However, while Section 127 doesn't specifically mention the target audience, and hence "grossly offensive" depends on context, the Malicious Communications Act does. House uploaded the photograph to his own facebook page - he did not send the photograph to an individual or individuals to whom it would cause distress or anxiety. Arresting House under Section 127 would be possible, but arresting House under the Malicious Communications Act appeals illogical.

A final point about this case, as with many others, is that the arrest followed when a member of Casuals United[3], a controversial far right anti-Muslim protest group, had taken a screenshot of House's page, broadcast that screenshot to a far wider audience, and complained to the police themselves. Statistics to show how many people had seen the photograph on House's facebook page and how many people had seen the photograph on other "outrage" sites are unavailable (and probably impossible), but the former will be far lower than the latter. The vast majority of electronic communications are seen by very few people; only those which are disseminated by the morally outraged are investigated.

House has been released on police bail pending further investigations.[4]

Arrests for posting a poppy-burning images on Facebook were made in Northern Ireland in November 2011. [5]